Bradshaw v. Social Security, Commissioner of
OPINION AND ORDER Adopting 20 Report and Recommendation. Signed by District Judge Marianne O. Battani. (BThe)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
ANGELINA M. BRADSHAW,
CASE NO. 2:12-cv-12609
HON. MARIANNE O. BATTANI
COMMISSIONER OF SOCIAL
OPINION AND ORDER ADOPTING THE MAGISTRATE JUDGE’S
REPORT AND RECOMMENDATION, GRANTING DEFENDANT’S
MOTION FOR SUMMARY JUDGMENT, AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
This matter is before the Court on Plaintiff Angelina Bradshaw’s Objections to the
Magistrate Judge’s Report and Recommendation.
Bradshaw filed for
Disability Insurance Benefits and Supplemental Security Income on March 5, 2008.
After an administrative hearing was held, the Administrative Law Judge (“ALJ”) found
Bradshaw not disabled and denied benefits. The Appeals Council denied review.
Bradshaw then filed for review in district court. Upon cross-motions for summary
judgment, Magistrate Judge Steven Whalen issued a Report and Recommendation
(“R&R”) affirming the denial of benefits. Bradshaw timely filed objections to the R&R,
arguing that the hypothetical question posed to the Vocational Expert (“VE”) failed to
account for her moderate limitations in public interation and that the Magistrate Judge
improperly found that she suffered no limitations as a result of moderate difficulties in
concentration, persistence, or pace.
For the reasons stated below, the Court
OVERRULES Plaintiff’s objections, ADOPTS the Report and Recommendation,
GRANTS Defendant’s motion for summary judgment, and DENIES Plaintiff’s motion for
STATEMENT OF FACTS
As the parties have not objected to the Magistrate Judge’s recitation of the
administrative record, the Court adopts that portion of the R&R as if fully set forth
herein. See (Doc. 20 at 2-11).
STANDARD OF REVIEW
Objections to Magistrate Judge’s Report and Recommendation
A district court must conduct a de novo review of the parts of a magistrate
judge’s report and recommendation to which a party objects. 28 U.S.C. § 636(b)(1).
The district court “may accept, reject, or modify, in whole or in part, the findings or
recommendations made by the magistrate” judge. Id. The requirement of de novo
review “is a statutory recognition that Article III of the United States Constitution
mandates that the judicial power of the United States be vested in judges with life
United States v. Shami, 754 F.2d 670, 672 (6th Cir. 1985).
Congress enacted 28 U.S.C. § 636(b)(1) to “insure[ ] that the district judge would be the
final arbiter” of a matter referred to a magistrate judge. Flournoy v. Marshall, 842 F.2d
875, 878 (6th Cir. 1987).
Commissioner’s Disability Determination
Judicial review of the Commissioner’s disability decision is limited to determining
whether the findings are supported by substantial evidence and whether the
Commissioner employed proper legal standards in reaching his conclusion. Brainard v.
Sec’y of HHS, 889 F.2d 679, 681 (6th Cir. 1989). “Substantial evidence exists when a
reasonable mind could accept the evidence as adequate to support the challenged
conclusion, even if that evidence could support a decision the other way.” Casey v.
Sec’y of HHS, 987 F.2d 1230, 1233 (6th Cir. 1993); Lindsley v. Comm'r of Soc. Sec.,
560 F.3d 601, 604 (6th Cir. 2009). Consequently, the standard of review is deferential
and allows considerable latitude to administrative decisionmakers because it
presupposes there is a “zone of choice” within which the decisionmakers can find either
way, without interference by the courts. Felisky v. Bowen, 35 F.3d 1027, 1035 (6th Cir.
1994); Mullen v. Bowen, 800 F.2d 535, 545 (6th Cir. 1986) (en banc).
When determining whether substantial evidence supports the Commissioner’s
decision, the reviewing court must take into consideration the entire record, including
“whatever in the record fairly detracts from its weight.” Id. When the Appeals Council
declines to review the Administrative Law Judge’s (“ALJ”) decision, the court’s review is
limited to the record and evidence before the ALJ. Cotton v. Sullivan, 2 F.3d 692, 696
(6th Cir. 1993). The court may look at any evidence in the administrative record, even if
it has not been cited by the ALJ. Walker v. Sec’y of HHS, 884 F.2d 241, 245 (6th Cir.
1989). There is no requirement, however, that the reviewing court discuss every piece
of evidence in the record. Kornecky v. Comm'r of Soc. Sec., 167 F.App’x. 496, 508 (6th
Cir. 2006). Moreover, the court may not conduct a de novo review of the evidence,
determine credibility, or weigh the evidence. Brainard, 889 F.2d at 681. The court’s
role is limited to a search for substantial evidence, that which is “more than a scintilla of
evidence but less than a preponderance; it is such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Rogers v. Comm'r of Soc.
Sec., 486 F.3d 234, 241 (6th Cir. 2007).
Framework for Disability Determination
In order to qualify as “disabled” under the Social Security Act, a claimant must be
“[unable] to engage in any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected to result in death or
which has lasted or can be expected to last for a continuous period of not less than 12
42 U.S.C. § 423(d)(1)(A).
In a step-by-step sequential process, the
Commissioner considers whether the claimant: (1) worked during the alleged period of
disability; (2) has a severe impairment; (3) has an impairment that meets or equals the
requirements of an impairment listed in the regulations; (4) can return to past relevant
work; and (5) if not, whether she can perform other work in the national economy. 20
C.F.R. § 416.920(a). Plaintiff has the burden of proof at steps one through four, but the
burden shifts to the Commissioner at step five. Richardson v. Sec. of HHS, 735 F.2d
962, 964 (6th Cir. 1984).
Bradshaw’s first objection is that the Magistrate Judge failed to find error in the
ALJ’s failure include the mild limitations on her ability to interact with the general public
in the hypothetical question posed to the VE. Dr. Balunas, a non-treating physician,
concluded that Bradshaw had moderate limitations with social functioning based on
Bradshaw’s own statements that she finds it difficult to be around people. (A.R. 19).
However, the ALJ found that Bradshaw suffered from only mild deficiencies in social
functioning because the evidence indicated that she was “able to care for her children,
grocery shop, go to church, and attend medical appointments.” (Id.); see also (A.R.
269) (Dr. Matouk noting that Bradshaw told her she has “a few social relationships
besides going to the grocery store and going to church”). The ALJ further noted that
these activities involve frequent interaction with the general public. However, Bradshaw
does not dispute the severity of her limitations, only that her mild limitations should have
been accounted for in the hypothetical question.
At step two of the evaluation process, the ALJ is required to determine the
severity of the claimant’s impairments. An impairment rated “none” or “mild” is “‘not
severe’ unless the evidence otherwise indicates that there is more than a minimal
limitation in [the claimant’s] ability to do basic work activities.”
20 C.F.R. §
“An impairment . . . is not severe if it does not significantly limit [the
claimant’s] physical or mental ability to do basic work functions.”
20 C.F.R. §
404.1521(a). Consequently, non-severe impairments cannot serve as the basis for a
finding of disability absent other indices and need not be included in the hypothetical
question. See Merkel v. Comm’r of Soc. Sec., Case No. 07-11171, 2008 WL 2951276
*10 (E.D. Mich. July 29, 2008). Here, Bradshaw asserts no other basis for including her
mild limitations in social functioning in the hypothetical question and her first objection is
Moderate Deficiencies in Concentration, Persistence, or Pace
Bradshaw’s second objection consists of two parts. Bradshaw first asserts that
the ALJ’s Residual Functional Capacity (“RFC”) presented in the hypothetical question
limiting her to “simple unskilled tasks” fails to account for her moderate deficiencies in
concentration, persistence, or pace (“CPP”).
Second, the ALJ concluded and the
Magistrate Judge agreed, that Bradshaw suffered no significant limitations arising
therefrom because Bradshaw completed (albeit with a failing grade) several online
courses. Indeed, the Magistrate Judge noted that “Plaintiff’s ability to see the online
courses to completion is instructive of an ability to concentrate even though she did not
pass her courses.” (Doc. 20 at 15). Bradshaw asserts this evidence does not support
the ALJ’s conclusion that she possesses adequate memory, judgment, and
At Step 3 of the sequential analysis, the ALJ found that Bradshaw suffered from
moderate deficiencies in CPP, but concluded that “psychiatric evaluations indicate that
claimant exhibits intact memory, adequate judgment, and adequate concentration.”
(A.R. 19). Essentially, the ALJ found no actual limitations arising from the condition.
Bradshaw argues this conclusion is unsupported by the evidence in the record.
Standing alone, completion of online classes with a failing grade does not
demonstrate an exceptional ability to concentrate for sustained periods of time.
However, the ALJ’s finding that Bradshaw suffered moderate limitations in CPP is
supported by substantial evidence. The ALJ noted that Bradshaw indicated that she
performed “well in school and has no difficulty reading or writing.”
addition, several psychiatric evaluations demonstrated that Bradshaw possessed
adequate concentration, memory, and judgment. The report from The Common Ground
Sanctuary indicated that Bradshaw was “alert, oriented, and goal-directed.” (A.R. 233).
In another evaluation, Dr. Matouk noted “unremarkable mental capacities and intact
reality and cognitive function.” (A.R. 270). Likewise, the evaluation from Easter Seals
indicated Bradshaw had fair memory and average intellectual function.
Consequently, the ALJ’s conclusion, based on all of the record evidence, that Bradshaw
possessed “intact memory, adequate judgment, and adequate concentration” is
supported by substantial evidence. (A.R. 19).
Regarding whether limiting Bradshaw to performing “simple unskilled tasks” in
the hypothetical adequately accounted for the moderate deficiencies in CPP, there is no
bright-line rule that such a limitation is insufficient. See Taylor v. Comm’r of Soc. Sec.,
2011 WL 268682 *7 (E.D. Mich. May 17, 2011). Rather, the court must look to the
entire record. See Hess v. Comm’r of Soc. Sec., 2008 WL 2478325 *7 (E.D. Mich. June
16, 2008) (“However, the record as a whole indicates that the hypothetical question and
the ALJ’s finding of ‘moderate’ limitations findings are not incompatible.”) (emphasis
Here, the ALJ found no significant limitations arising from Bradshaw’s moderate
deficiencies in CPP, citing several psychiatric evaluations. The ALJ concluded that
Bradshaw could perform simple unskilled work despite her concentration problems.
Viewing the record as a whole, the ALJ’s hypothetical question limiting Bradshaw to
“simple unskilled tasks” adequately accounts for her deficiencies and is supported by
Accordingly, the Court OVERRULES Plaintiff’s objections, ADOPTS the Report
and Recommendation, GRANTS Defendant’s motion for summary judgment, and
DENIES Plaintiff’s motion for summary judgment.
IT IS SO ORDERED.
s/Marianne O. Battani
MARIANNE O. BATTANI
UNITED STATES DISTRICT JUDGE
DATE: July 17, 2013
CERTIFICATE OF SERVICE
I hereby certify that on the above date a copy of this Order was served upon all
counsel of record via the Court’s ECF Filing System.
s/Bernadette M. Thebolt
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